[Congressional Record Volume 166, Number 18 (Tuesday, January 28, 2020)]
[Senate]
[Pages S629-S630]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                            H. CON. RES. 83

  Mr. MENENDEZ. Mr. President, H. Con. Res. 83 directs the President to 
terminate the use of U.S. Armed Forces to engage in hostilities against 
Iran, unless Congress has authorized the use of military force against 
Iran or such use is necessary to defend against an imminent armed 
attack. H. Con. Res. 83 was agreed to in the House of Representatives 
on January 9, 2020 and received in the Senate and referred to the 
Senate Committee on Foreign Relations on January 13, 2020.
  The War Powers Resolution, PL 93-148, has special procedures 
underscoring the privileged nature of a concurrent resolution like H. 
Con. Res. 83. Section 1546(c) of the War Powers Resolution requires 
that once a privileged concurrent resolution such as H. Con. Res. 83 
has been passed by the House, it must be referred to the Senate Foreign 
Relations Committee, and ``shall be reported out by such committee 
together with its recommendations within fifteen calendar days.'' 
Fifteen calendar

[[Page S630]]

days from January 13 is today, January 28, 2020. Under the law, the 
concurrent resolution may be reported out with a favorable or 
unfavorable recommendation, or no recommendation at all, but it must be 
reported out.
  Unfortunately, it appears that the Senate Foreign Relations Committee 
majority leadership has decided to allow the 15 calendar days to lapse 
without taking action on H. Con. Res. 83. This failure to act leaves a 
statutory obligation unfulfilled.
  I understand that the chairman is basing this inaction primarily on 
the contention that a concurrent resolution under 50 U.S.C. 1544(c) may 
be privileged only if it uses the word ``remove'' or the phrase 
``removal of United States Armed Forces engaged in hostilities,'' 
rather than ``terminate'' or ``terminate the use of United States Armed 
Forces to engage in hostilities'' as used in H. Con. Res. 83. The 
argument appears to be that the use of ``removed'' in 1544(c) of the 
War Powers Resolution eliminates the possibility of privilege if any 
other terminology is used, regardless of functional equivalency. This 
argument suggests that ``removal'' is a term of art required for 
privilege.
  The approach is unjustifiably restrictive. Treating ``removal'' as a 
term of art required for privilege is inconsistent with the overarching 
purpose of the War Powers Resolution and without support in either the 
statutory framework or legislative history. It also undermines Senate 
and congressional prerogatives.
  The purpose of the War Powers Resolution was for Congress to 
reconfirm and reassert its constitutional powers over ``undeclared'' 
wars. The availability of a privileged and binding resolution to force 
a President to stop using U.S. Armed Forces in hostilities is central 
to that purpose. Limiting such privilege to a single phrase or word is 
inconsistent with this reassertion of congressional powers and is 
neither a feature of the statute nor its legislative history.
  The statutory framework of the War Powers Resolution does not support 
the assertion that ``removal'' or ``removal from hostilities'' are 
terms of art that are required for and exclusive to the availability of 
privilege. To the contrary, those terms are not defined in law; nor is 
there any reference in the statute to a military or other usage of 
those phrases to suggest that they are terms of art.
  The absence of statutorily mandated language for privilege in the War 
Powers Resolution directly contrasts with many other statutes in which 
Congress expressly requires specific language for privilege to attach. 
For example, in contrast to the War Powers Resolution, section 130(f) 
of the Atomic Energy Act of 1954, PL 83-703, section 101 of the Arms 
Export Control Act, PL 90-629, and section 216(c) of the Countering 
America's Adversaries Through Sanctions Act, PL 115-44 all require 
specific text for privileged resolutions and provide that text in 
quotations in the statute. Clearly, as evidenced by laws enacted before 
and after the War Powers Resolution, Congress knows how to require the 
use of unique, statutorily mandated language for privilege to apply. 
The fact that it did not do so in the War Powers Resolution 
demonstrates that there was no intent to limit privilege to use of a 
single word or phrase.
  Further, the legislative record of the War Powers Resolution does not 
support the assertion that there is an exclusive connection between the 
use of ``removal'' and the availability of privilege. To the contrary, 
the record indicates that ``remove'' and ``terminate'' were used 
synonymously. The record is replete with the interchangeable usage of 
synonymous terms consistent with a cessation of the use of U.S. forces 
in hostilities. For example, House Report 93-287 uses no less than 
seven terms in this regard, including ``conclude,'' ``disengage,'' 
``remove,'' ``terminate,'' ``abandon such action,'' and ``stop.'' In 
fact, the conferees even used ``terminate'' to describe the privileged 
resolution envisioned in 1544(c), clearly demonstrating that these 
terms were considered to be functionally equivalent for purposes of War 
Powers. ``The House joint resolution provided that use of United States 
Armed Forces by the President without a declaration of war or specific 
statutory authorization could be terminated by Congress through the use 
of a concurrent resolution. The Senate amendment provided for such 
termination by a bill or joint resolution.'' H. Rept. 93-547, 
Conference Report to H.J. Res. 542. This legislative history, in tandem 
with a statutory construct that does not require a term of art, 
demonstrates that the insistence on such a term for privilege is 
misguided.
  Finally, strictly limiting privilege to a resolution that uses 
``remove'' is inconsistent with Senate and congressional perogatives. 
The purpose of the War Powers Resolution--reasserting the power of 
Congress over undeclared wars--can be vindicated only if the executive 
branch and its supporters in the Senate cannot use committee or floor 
procedure to bottle up a resolution consistent with both the purpose 
and construct of the War Powers Resolution. Reading into the statute a 
requirement for specific terminology where no such requirement exists 
unjustifiably restricts Senate action and limits the reassertion of 
congressional authority over War Powers.
  For the reasons stated above, I urge the chairman to immediately take 
the necessary steps to ensure full compliance with the law.

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